*1 No. 12,893. (26 245) [2d] P. Decided October & in error. Burg’ess Adams, Messrs. & Mr. Frank Messrs. Noonan Delaney, Noonan, in error. defendant Department.
In court. opinion delivered Butler Mr. Justice recovered action C. replevin Jerry In *2 judgment Wyman possession Walter against for the unlawful eighteen head of cattle for $170.10 detention are asked to reverse judg- thereof. We ment. In one denied that Wyman defense
the owner and entitled to the of the cattle. possession For a further Wy- answer and by way of counterclaim, man alleged that entered into an parties agreement of nature a adventure that joint cattle; concerning pursuant to the agreement, McCarthy sold all the cattle except the eighteen head action; involved in that this McCarthy sold the eighteen Wyman head to for $1,305, the purchase price to be Wyman’s from share deducted of the profits of the joint adventure; and that an account- ing would show that McCarthy is indebted to in Wyman the sum of which $1,669.93, amount prayed judgment. On McCarthy’s were motion, allegations stricken from the answer. cannot Wyman’s We sustain exception to the On no of ruling. theory did the case allegations have a in proper place the pleading.
(a) Viewing the as a further allegations an swer, they improper. They did not constitute “new matter” within the of meaning section 62 of the Code Civil Procedure. Affirmative matter requiring special plea must inbe avoidance; it is consistent with the plain tiff’s cause of but operates defeat it. If the matter pleaded is inconsistent with the plaintiff’s claim, only its effect is to disprove it, and it is admissible in support of a denial. Hallack-Sayre-Newton Lumber Co. 4 Blake, Colo. 36 Pac. Cuenim v. Halb App. 554. In 486, ouer, 74 Pac. 51, 885, Colo. plaintiffs that alleged they possession were entitled to of certain real prop erty. answer denied The that the plaintiff s were entitled to such As a third possession. defense, the defendant affirmatively facts pleaded tending show that the deed void.
under which the claimed title was We pleading said: rule of it he that “But under no can said up the matters in set the third defense answer this require replication. new which Considered in matters light alleged most favorable to the facts defendants, only probative tending, therein are nature, true, plaintiffs’ show the defects admissible title, at general are so all, under also Mott v. denial.” See Pomeroy’s Baxter, 29 220: Colo. 68 Pac. In Code (Fifth 1929), Remedies section law is stated Ed., 567, the overwhelming weight judicial in these words: “The opinion unanimity complete agreed upon has with almost principle distinguishes which from new mat denials ter, and determine the office and of each. The function general puts denial in issue all the material averments complaint petition, permits or the defendant prove any negative and all facts which tend to those *3 averments or some one or more of them. fact, Whatever proved, allega if would not thus tend to contradict some plaintiff’s pleading, tion of the to first but would tend circumstance, establish some or conclusion transaction, allega of fact, not with inconsistent the truth of all those new tions, is matter. It is said to be ‘new,’ because is by not embraced within the statements of the fact made plaintiff; it exists outside of the he has which narrative given; proving disprove it to be true mot does single complaint petition, averment or but of fact merely destroys leg'ai prevents or conclusion as to the plaintiff’s rights and the defendant’s duties which would have resulted from all those otherwise averments ad . proved mitted or to be Such is the nature of the true by presented new matter which cannot be means of a specially pleaded, plain must so that but be denial, may tiff be informed of its and of the existence be use by made of it the defendant.” Evidence of the matter (and specially pleaded was admissible was admitted at specific trial) allega under the denial; fact, argumentative an tions constituted denial, therefore
343 They properly stricken. Bolton were redundant. Ry. 530. 172 Mo. 72 S. Co., 92, Missouri W. v. Pac. subject length I have with because dealt at some this justices view of the rules of one takes different expresses concurring pleading, view in a which he opinion.
(b) properly counterclaim was stricken. The did not plaint, com arise out set forth in the transaction subject
nor was it with the ac connected tion. Code of Procedure, §63; Civil General Mason Machinery Supply (2d) Co., 802; & 91 Colo. 11 P. 69, Mason Tire Co. v. Co., Sales Mason Tire & Rubber Colo. Pac. 117. by Concerning alleged the cattle sale of
McCarthy Wyman, Wyman testified that the sale pay price was made, and that he was to “whenever straightened up we books”; our whereas testi [Wyman] you going fied as follows: “He said, ‘If why you says, to sell don’t I them, sell them to me?’ ‘I just you anybody you money got as soon sell to as pay says, stopped them.’ for He ‘I when I come through Meeker and seen Ernest Oldland and made ar rangements money. you If still want to sell them I’ll stop go tonight get when I back hold of Ernest and get money buy purchase price them’.” The paid. never conflicting jury
On such evidence, the found the issue finding. We cannot disturb that 3. But contends that even the cattle by bought by were not him, had, he of reason fact *4 joint special that there a adventure, was a interest in the McCarthy cattle, and that therefore was not entitled to possession against Considering, as him. we as the must, light evidence in the most favorable to the successful party, Wyman the transaction seems to have been this: pasture had some land and wanted someone to stock it. agreed McCarthy place was that should his cattle on Wyman land; that should feed and take care of them; 34A any, profits, if sold,
and cattle were that when the McCarthy equally- with testified should divided as or, be — anything, I would made out “If the contradiction, cattle McCarthy ship split profits to with him.” placed bought on the land. cattle. head and them He McCarthy McCarthy’s Practically Later all brand. bore except in this action sold all the the 18 involved cattle-, They for. were sold and and 16 that not accounted gave shipped by of bills name, him in his and he alone purchasers. excepting calf, sale to-the All of the McCarthy’s ownership joint bore- brand. was no There- property They of Mc remained sole the cattle. Wyman, they through Carthy, no fault and had died McCarthy upon He alone. the loss would have fallen right right to their alone them, had sell delivery. possession purpose As for the sale arrangement they the 18 were left over after the head, buy them, and, had offered terminated, money, bought from he would have them had had the by McCarthy price at the fixed McCarthy Replevin possessory and as action, ais possession involved in this of the cattle is entitled to the right. judgment in favor his verdict and is As we record, judgment error find no affirmed. Holland and Mr. Justice Adams
Mr. Chief Justice concur. in conclu- Adams, concurring* Justice Chief
Mr. sions. Wyman’s allegation “fur-
I think defendant the- it), (as designates he answer ther and counterclaim” 18 head the effect sold that them, paid is the latter to defendant and that cattle allegation fact, which, substantive material, of a an complete If had been defense. constituted true, proven, recovery. plaintiff ’s This defeated have it would *5 being’ to me that so, seems the court struck too muck respect. directly from the answer in this con- subject right nected with the of the i. e., the possession.
Notwithstanding’ the above, the district court did not proof subject restrict defendant in his on such al- leged payment, ques- sale and in so far as it affected the right possession. tion The court seems to have al- testimony general lowed such under the but what- issue, theory testimony ever was followed, the allowance of such fully accomplished purpose. defendant’s It cured the any, striking portions error, if answer; it was prejudice. therefore without For these I concur reasons, judgment. affirmance
No. 12,905. Harding Brayton et al. (26 106) P. [2d]
Decided October